When you have a formal disciplinary meeting with an employee, you should offer that employee the opportunity to have a support person if they wish.
Disciplinary meeting can relate to discussions regarding performance, conduct, misconduct allegations, or responding to a workplace grievance or consultation.
Offering the person the opportunity to have a support person ensures procedural fairness by the employer.
The role of a support person is to provide the employee with emotional support during the meeting, take notes and adjourn the meeting for a break if required.
The support person cannot advocate or talk on behalf of the employee, or otherwise interject in the meeting.
The support person acts as an observer, takes notes and can ask questions about the process if the meeting does not adhere to its scope. But that is extremely limited.
To avoid any conflict of interest (i.e. the support person being a person who is already involved in the matter), you should ask the person in question to notify you beforehand in writing whom their nominated support person is.
The employee has the right to decide whom their support person is, so long as it does not create a conflict of interest in the matter. For example, the support person should not be a witness to, or otherwise be associated with an investigation, or have any personal interest in the outcome.
Knowing whom the nominated support person is also can ensure confidentiality since you can direct the support person to maintain confidentiality throughout the process too.
A support person can generally be a work colleague, friend, family member, union representative, union delegate or lawyer. However, a lawyer cannot act in a professional capacity as a representative they are attending solely as a support person.
Pursuant to section 387 of the Fair Work Act 2009 (Cth), when assessing unfair dismissal cases, the Fair Work Commission will take into account if there was any unreasonable refusal by the employer to allow the employee to have a support person present to assist in any discussions relating to dismissal.
Hence, in your notice of disciplinary meeting letter, you should invite your employee to have a support person present if they wish. You can find our notice of disciplinary meeting letter template below.
At the outset of any disciplinary meeting, you should make it clear that the role of a support person is not to act as an advocate for that person. Most employers commence meetings with an explanation of what the support person cannot do and they do. This to imply that the support person must be silent for majority of the meeting and not interject unless they believe the process or agenda is not being followed.
Should the support person overstep their role and act in a disruptive or argumentative manner, they risk compromising the interests of the employee. The support person should only intervene if the meeting process appears to be inappropriate, for example people raising their voices.
Otherwise, if the support person intervenes too much and you have already warned that support person to stop, you can terminate the entire meeting early if the support person does not adhere to that warning. Remember to take contemporaneous notes before, during and after the meeting to substantiate meetings of what occurred and your decision-making process.
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